JUMA KHAN and others vs Mst. BIBI ZENABA and others

RANA BHAGWANDAS, J.--Petitioners seek leave to appeal against. Judgment dated 29-11-1999 of Peshawar High Court, Abbottabad Bench in Civil Revision No,117 of 1996 dismissing petitioners' revision petition against concurrent findings of fact in Suit No,21/1 of 1982 for declaration tiled by the petitioners against the respondents.

2. Facts of the case appear to be that Palas Khan tiled two suits i,e, 45/1 and 46/1 of 1982 while Juma Khan and others filed Suit No,20/1 of 1982 against Malik Aman and others for declaration that their predecessors were owners of suit land by virtue of deeds dated 20-2-1942 and 13-3-1945.

They claimed ownership through inheritance and challenged the entries in the Revenue Record adverse to their interests as ineffective on their rights. Conversely, respondent Mst. Bibi Zenaba 'tiled Suit No,148/1 of 1987 for declaration claiming her right of ownership to the extent of 1/20th share in the suit land by virtue of inheritance being real daughter of Mst.Durkho, sister of Malik Aman and daughter of Abbas Khan. After framing issues and recording evidence, trial Court decreed the suits filed by Palas Khan and Juma Khan and others on 18-11-1989 and dismissed the suit tiled by Mst.Bibi Zenaba. She filed four appeals, one against the dismissal of her suit and three against judgments and decrees in suits filed by Palas Khan and others, which were accepted by District Judge Mansehra vide judgment and decree -dated 6-2-1992. All the suits were remanded to the trial Court for decision afresh, It may be pertinent to point out that legal representatives of Malik Aman did not challenge the judgments and decrees against their predecessor-in-interest.

3. In the post remand proceedings trial Court decreed the suit tiled by Mst.Bibi Zenaba vide judgment and decree dated 25-1-1993 against the petitioners who appealed against the judgment and decree, which was accepted by District Judge Batagram on 31-10-1994, remanding the suit to the trial Court with the direction that the suit of Mst.Bibi Zenaba should be decided along with the suits filed by Palas Khan and Juma Khan and others. It may be clarified that during the pendency of the lis Batagram was declared as a new District, therefore, the suits were transferred from the Court of Civil Judge, Mansehra to the Court of Senior Civil Judge, Batagram. In the second round, trial Court decreed the suit filed by Mst.Bibi Zenaba and dismissed the suits filed by Palas Khan and Juma Khan and others vide judgment and decree dated 13-7-1995. Petitioners challenged the judgments and decrees through four separate appeals, which were dismissed on 20-8-1996 leaving the petitioners with no option but to invoke the civil revisional jurisdiction of the Peshawar High Court, leading to the impugned judgment.

4. We have heard Mr.Arshad Ali Chaudhry, learned Advocate Supreme Court for the petitioners, gone through the impugned judgment and carefully scanned the record. Admittedly, the suit land belonged to Abbas Khan on whose demise the property devolved upon his son Malik Aman and his daughter Mst.Durkho, Malik Aman had left this country in his early age for Far East. The area in which the property in dispute is situated, merged in Settled Area in the year 1952 and first settlement of the area took place in the year 1966 and 'Mislay-Haqiat-Bandu-Bast was prepared in the year 1966-67. As Malik Aman was in Siri Lanka during the settlement, apprehending some foul play at the hands of Mir Malik (predecessor-in-interest of Juma Khan and Palas Khan), he appointed his sister Mst.Durkho as his attorny to look after his interest in the property. On his applications to the concerned authorities and initiative of Mst.Durkho, informing them that Palas Khan was mortgagee of some land of Malik Aman in a sum of Rs,2,000 while Mir Malik was mortgagee of some portion of land against amount of Rs,5,500, a thorough enquiry was conducted at the spot by the Settlement Authorities by registering a regular settlement case on 8-7-1966, which was decided on 8-7-1967. Enquiry Officer's findings duly endorsed by Settlement Tehsildar and accepted by Settlement Officer, Batagram on 1-8-1967 were in fact conveyed to Mir Malik and Palas Khan, who thumb-impressed the same in token of acknowledgement way back on 26-9- 1967. Accordingly entries in the settlement record for 1966-67 were made showing the plaintiffs of three suits as mortgagees, which entries continue till date.

5. It was concluded as a finding of fact by the High Court that after 15 years, plaintiffs/predecessors-in-interest of petitioners, after concocting and fabricating two sale-deeds pre-dated 20-2-1942 in favour of Mir Malik-predecessor of Juma Khan and others and deed pre- dated 13-3-1945 in favour of Jamal Khan father of Palas Khan petitioner No,21, entitling them to fall.

Within the ambit of discretionary presumption, which a Court may draw under Article 100 of Qanun-e-Shahadat Order but the trial Court as well as the Appellate Court refused to draw a presumption in their favour for cogent reasons. Suffice it to say, alleged deeds were written on plain papers; full description of scribe and marginal witnesses were not given; Malik Aman was a literate man, who had always signed his applications; so-called sale receipts were never acted upon by persons claiming under them; alleged scribe Maulvi of Village Kandar and marginal witness Muhammad Ali Maula were not produced nor were they proved to be dead. Only one Dast Ali, who could not identify his signatures on so-called receipts, was produced. Both the deeds reflecting transfer of land were thus discarded by all the Courts and the plea raised on behalf of the petitioners that the suit filed by Mst.Bibi Zenaba was barred by time was also rejected for sound and cogent reasons. It was held that her case related to right of inheritance to ancestral property, thus, the question of limitation did not arise in such an eventuality.

6. Learned counsel for the petitioners is unable to controvert the findings of fact recorded by the Courts below including the High Court. Realising the weakness of his stance, learned counsel has attempted to assail the validity of the judgment on technical grounds that the High Court announced the judgment after more than five months in violation of the provisions contained in Order XX, rule 1, C.P.C. And Chapter XI-A, Volume I, High Court Rules and Orders. From the record it appears that arguments in the writ petition were heard on , 21-6-1999 whereas the judgment was delivered by the High Court on 29-11-1999. In order to re-enforce his submission, learned counsel relies upon Walayat Hussain v. Muhammad Hanif (1989 MLD 1012), which is a decision by a learned Single Judge of the Lahore High Court. In the reported case, plaintiff's side of evidence was closed under Order XVII, rule 3, C.P.C. By a Civil Judge of Lahore and the case was adjourned for arguments. Order closing evidence of plaintiff was challenged by means of a civil revision before the District Judge, before whom it was contended that the order under challenge was in fact an order under Order XVII, rule 2, C.P.C. And not under Order XVII, rule 3, C.P.C. Learned District Judge dismissed the civil revision in limini with the remarks that let this matter be decided in appeal, if any, in case the decision is against the petitioners'. Thereafter, Civil Judge heard arguments on 16th December, 1987 and continued adjourning the case from time to time till 19th July, 1988 when he decided the suit. It was in these circumstances that High Court remanded the suit to the trial Court to decide it afresh after hearing arguments again, with the observation that period for announcement of judgment after hearing of arguments being three months, no justification had been offered for announcing judgment after a long period of eight months. Suffice it to observe, the precedent is completely distinguishable on facts and of no avail to the petitioners. We may observe that once the arguments are concluded before a Court of law, it is expected that judgment must be announced within a reasonable period and without unnecessary delay. No doubt, Order XX, rule 1(2), C.P.0 stipulates that the Court shall, after the case has been heard, pronounce judgment in open Court, either at once or on some future day not exceeding thirty days,' for which due notice shall be given to the parties or their Advocates, the tact remains that provision on the face of it is directory in nature as it does not provide for consequences in case it is not strictly adhered to. In our view, it is in the nature of a guiding principle for the Courts to which C.P.C. Is made applicable. The rule must be kept in mind while reserving a case for judgment. We may refer to a case arising out of a criminal appeal before this Court reported as Muhammad Bakhsh v. State (1989 SCMR 1473), in which it was observed that 'no doubt the judgment was announced one year after it had been reserved but we find that the learned Judge has adverted to all the points. Nevertheless, it is proper that once the arguments conclude and the judgment 'reserved, it has to be announced within reasonable period'. In another case arising out of judgment of Federal Service Tribunal reported as Ali Khan Subahpoto v. Federation of Pakistan (1997 SCMR 1590). It was observed that 'though strictly speaking rule 30 or Order XLI, C.P.C. Is not applicable to appeals before the Service Tribunal, it does not mean that the Tribunal is free to pronounce judgments at its sweet-will whenever it likes even after considerable delay'. It was observed that the question as to what will be reasonable period for pronouncing judgment in a particular appeal before the Tribunal, will depend on the facts of each case and the legal points involved therein. No general principle of universal application can be laid down. As no prejudice has been caused to the petitioners by reasons of delay in pronouncement of the impugned judgment and the rule is merely directory, in our view the submission is inconsequential having no material bearing on the merits of the case. Even under Constitutional dispensation, the case in hand is covered by Article 254 of the Constitution. For convenience sake it may be reproduced as under: "When any act or thing is required by the Constitution to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period."

7. It would, thus, seem that the judgment cannot be declared to be invalid or to have been passed without lawful authority simply because the pronouncement was delayed for which no specific period can be prescribed under law. Similar opinion was earlier expressed in S.K. Lodhi v. Claims Commissioner (PLD 1968 Lahore 1311); Bashir Ahmed Khan v. Mumtaz Begum (1979 CLC 114) and Muhammad Ibrahim v. Sindh Industrial Trading Estate Ltd. (PLD 1985 Karachi 95). We are not unmindful of a contrary view expressed by Supreme Court of Azad Jammu and Kashmir in Mahmud Ahmed v. Azad Government of the State of Jammu and Kashmir (PLD 1987 SC (AJ&K) 21).

In this case Service Tribunal had delayed the _pronouncement of judgment for more than one year. In the backdrop of such appeal, it was observed that if there is a considerable interval between the hearing of arguments and announcing the judgment, it cannot be said that the judgment was delivered soon after hearing the parties. The Court 'added that ' it is not conceivable that arguments advanced one year earlier in an appeal could be fresh in the memory of the Tribunal at the time of writing the judgment'. In the special circumstances of the case, it was held that the judgment announced after expiry of a considerable time would be deemed to be a judgment without hearing parties concerned. There may be no cavil with the opinion expressed by Azad Jammu and Kashmir Supreme Court, as observed hereinabove, no inflexible rule of law prescribing a period can be laid down for the pronouncement of a judgment after conclusion of the arguments. It may, however, suffice to say that it would always be just and proper to pronounce the judgment within a reasonable period after notice to the parties. We are firmly of the view that merely because of delay in pronouncement of judgment, decision itself is not vitiated.

8. Next submission of the learned counsel for, the petitioners is that after remand of the suit, learned Civil Judge did not frame additional issues as directed. It may be pertinent to observe that this ground was neither agitated in first appeal before the District Judge nor in the revision before the High Court. Learned counsel was fair enough to concede this factual aspect of the case and that is why the High Court has not dilated upon this question. It is well-settled that a question of fact not raised before the lower forums and more particularly before the High Court cannot be allowed to be raised, for the first time, before this Court.

9. No other point was urged in support of this petition, which is devoid of any merit. It is hereby dismissed and leave to appeal refused with no orders as to costs.